Gardner v. Sumner, 6 Div. 701

• Decision Date: 23 June 1959
• Docket Number: 6 Div. 701
• Citation: 40 Ala.App. 340,113 So.2d 523
• Parties: W. C. GARDNER et al. d/b/a 7-Up Bottling Company v. Loyd SUMNER.
• Court: Alabama Court of Appeals

Page 523

113 So.2d 523

40 Ala.App. 340

W. C. GARDNER et al. d/b/a 7-Up Bottling Company v. Loyd SUMNER.

6 Div. 701.

Court of Appeals of Alabama.

June 23, 1959.

Tweedy & Beech, Jasper, for appellant.

Fite & Fite and Bill Fite, Hamilton, for appellee.

These charges were refused to defendants:

'8. The court charges the jury that there is no evidence of negligence in this case on the part of the defendant merely because the plaintiff drank the bottled Root Beer drink with a piece of rotten, poisonous foreign matter and a piece of decayed cigar in it.

'9. The court charges the jury that the defendant does not guarantee that this drink does not have a piece of rotten, poisonous foreign matter and a piece of decayed cigar in it, and you cannot return a verdict for the plaintiff merely on account of the proof of such facts, if it be a fact.'

HARWOOD, Presiding Judge.

In the suit below Loyd Sumner filed his complaint in four counts claiming damages for physical illness and suffering proximately resulting from defendants' negligence in bottling and selling a bottle of root beer for use by the public, which bottle contained foreign poisonous matter, and which was drunk by the plaintiff.

The jury returned a verdict in favor of the plaintiff, and fixed his damages at $400.00. Judgment was entered accordingly.

The evidence presented by the plaintiff tended to show that on the morning of 21 August 1957 he had been engaged in cleaning out a commercial chicken house. After hauling 'two loads' from the chicken house he went to the store of D. D. Real and purchased a root beer. He obtained the bottle himself from the box, uncapped it, and began drinking the contents.

He drank 'a right smart' of the contents of the bottle. It had a bitter taste, and when the 'stuff' hit his throat he started gagging, and spit into trash can. He began to pour the remaining portion of the bottle in the can, but Mr. Real stopped him, and some of the drink remained in the bottle. The bottle and remaining contents were received in evidence.

The foreign matter in the drink looked like pieces of a cigar.

According to Sumner he did not become sick immediately, but did become nauseated in about fifteen minutes as he was returning to the chicken house on a tractor. While he returned to the work in the chicken house, he felt half sick the rest of the day, and at one time had another worker relieve him and he went into a barn and tried to vomit some more.

Mr. Real, the storekeeper, gave testimony entirely corroborative of the plaintiff's.

Mr. Bobbie Faught, manager of the defendant bottling company, was presented as a witness for the defendants. He testified in detail as to methods employed by the defendants in rinsing, cleansing in hot caustic solution, washing by hot and cold jets of water, and inspection of bottles, etc. prior to their use, or re-use by the defendants. In other words, the defendants' evidence was directed toward showing that the machinery used, and the methods used in cleansing bottles, and filling them after such cleansing rendered it unlikely, if not impossible, for any foreign substance to be in the bottled drink.

This evidence, in light of the evidence presented by the plaintiff that some foreign substance was in the root beer he drank, presented a conflict within the province of the jury to resolve.

The principle largely governing the conclusion to be reached in this case is stated in Dr. Pepper Co. v. Brittain, 234 Ala. 548, 176 So. 286, 287, as follows:

'Appellant insists that the affirmative charge was due it because the evidence shows, as it is claimed without dispute, that it was not negligent in bottling the drink so as to produce the result. We have often referred to the principle that, when such an article is prepared for and intended to be consumed by some member of the public, and an attempt is made to do so by one so intended, and when the apparently original sealed package is first broken, it contains a foreign unwholesome substance, there is a presumption that such matter found its way in it on account of the negligence of defendant. Reichert Milling Co. v. George, 230 Ala. 3, 162 So. 393; Collins Baking Co. v. Savage, 227 Ala. 408, 150 So. 336; Coca-Cola Bottling Co. v. Crook, 222 Ala. 369, 132 So. 898; Try-Me Beverage Co. v. Harris, 217 Ala. 302, 116 So. 147.'

Or as stated in Try-Me Beverage Co. v. Harris, 217 Ala. 302, 116 So. 147:

'The presence of foreign matter deleterious to health sealed up in a bottle of soft drink is evidence of negligence.'

Appellant has argued some twelve assignments of error in brief.

Assignment 13 relates to the refusal of defendants refused charge No. 11. This charge is to the effect that the burden of proof throughout the trial rested on the plaintiff to show that his alleged injuries were the proximate result of the negligence on the part of the defendants, and if the plaintiff failed to meet this burden, the jury should return a verdict for the defendants. A charge of similar import was approved in Whistle Bottling Co. v. Searson, 207 Ala. 387, 92 So. 657. However, the court further held that its refusal was not error, in that it was covered by the court's oral charge. Likewise, in this case, the principle enunciated in refused charge 11 was amply covered in the court's oral charge. Its refusal therefore did not constitute error.

Assignments 22, and 21, relating to refused charges 3, and 4, respectively, likewise...